People may joke about being cut out of wills or leaving everything to an animal home rather than to their children, but the reality of being left out of a Will is anything but funny, says a specialist in wills, trusts and probate.
Sadly, it is not unusual to hear stories of relatives being cut out of Wills and whilst the deceased may have felt justified in their decision, the reality is that sometimes those who are left behind are hurt and upset by this decision, says Polly Stephenson, a specialist in disputing Wills, trusts and probate at Ashtons Legal. However, there are circumstances in which a Will can be challenged.
HOW CAN I DISPUTE A WILL?
If you have been excluded from a Will, or feel you have received too little or an unfair share? It may be that your relative died intestate – without leaving a Will – and you therefore feel the intestacy rules (when their estate is distributed to relatives or the Crown) have treated you unfairly. Either way, you may have a strong case for challenging what you have inherited.
The Inheritance (Provision for Family and Dependants) Act 1975 gives an opportunity for Wills or the provisions of an intestacy to be changed to provide for someone who believes they have been unreasonably excluded or short-changed.
WHO CAN CHALLENGE WHAT THEY RECEIVE UNDER THE TERMS OF A WILL?
If you’ve been left out of a will, or feel you haven’t received enough of a relative’s estate, you may be able to challenge the will. Only certain people can challenge a Will or intestacy under the 1975 Act. Broadly speaking, you need to be a spouse, civil partner, child or co-habitee of the deceased person, or someone who was ‘maintained’ (looked after) by them at the time of their death, , says Polly Stephenson, partner at Ashtons Legal.
HOW DO YOU CHALLENGE A WILL
?
It is recommended that you seek advice from a specialist solicitor first and foremost. A solicitor who specialises in Inheritance Act claims will, once they have all the facts, make an impartial assessment on the merits of your claim.
WHAT IF A WILL DOESN’T SEEM VALID?
If a friend or family member dies and leaves a Will that is unexpected or suspicious, seek immediate legal advice. The validity of a Will can be disputed for a number of reasons including lack of mental capacity, lack of valid execution, lack of knowledge and approval, and undue influence. A Will can also be contested on the basis that it is forged or fraudulent, or challenged where it fails to carry out the deceased person’s wishes due to a clerical error or where its meaning is unclear or ambiguous.
HOW LONG DO I HAVE TO CONTEST A WILL?
There is a six month deadline (from the date of the grant of probate) for issuing court proceedings under The Inheritance (Provision for Family and Dependants) Act 1975.
WHAT DO I DO IF I DISAGREE WITH A WILL?
Your solicitor will advise you on the strength of your case and will try to resolve matters quickly, cost effectively and without involving the court if possible.
However, if the case does go to court they will hear the arguments from both sides (the person bringing the claim on the one side and usually the beneficiaries on the other side) and decide what provision is reasonable. They will look at your age, your financial position, your health, your relationship with the deceased and/or whether the deceased maintained you, explains Polly.
“Adult children, as a rule, do have difficulty persuading a court that they should get something. Courts have said that if you are fully mobile and capable and can earn a living, then why should you expect to be left anything?”
DOES A CONTESTEd WILL HAVE TO BE FOUGHT IN COURT?
“Where possible, we try and reach a satisfactory solution without tearing families apart and we try to avoid court,” said Polly. Disputing Wills, estates and trusts are usually settled by mediation between those involved, with each being represented by a solicitor. Polly adds: “There is always a risk in taking disputes through to a final contested hearing. There is never any guarantee of success and the legal fees can escalate out of all proportion.
HOW CAN YOU ENSURE MY WILL IS NOT CHALLENGED?
Polly says: “To prevent your Will being disputed after your death, it is vital to seek legal advice when it is originally drafted”.
“If you wish to exclude someone, or leave one child more – or less – than another, I would advise you write an accompanying letter to the Will, setting out clear reasons for the decision you have made”.
Be aware however that even this might not be enough to prevent a challenge to that Will but the wishes, reasoning and views of the deceased will be taken into account by the Court in its consideration of any claim made against their estate. The Will writer can leave a small legacy, rather than nothing, on the understanding that it is forfeited if that beneficiary brings a claim.
DO I HAVE TO LEAVE MY MONEY TO MY FAMILY?
No, you can leave your estate to who you like. No-one can assume they will inherit anything and the Ilot case (SEE BELOW) emphasised the principles of testamentary freedom.
CAN I DISPUTE A WILL WHILE MY RELATIVE IS STILL ALIVE?
You can only challenge the validity of a will once they have died, because your relative may change their will again before they die. If it is thought the relative is being manipulated into making a will, that is a safeguarding issue and the solicitor should pick up on this when the will is being made.
MY FAMILY IS QUITE COMPLICATED, HOW CAN I DISPUTE A WILL?
With older couples divorcing there can be two warring sides of the family. The husband may leave everything to his wife believing she will share the estate equally on her death, but she may leave everything to her own children, not her step children. The children are adults and not being maintained, and their dispute of the will may never be resolved. It can take years - and the estate is consumed by lawyers’ fees. That’s why we try to mediate; it is by far the most sensible and cost effective way.
How do I find solicitors to write or contest a will?
Choose specialists in this field.
HAS A WILL BEEN SUCCESSFULLY DISPUTED?
A recent case that demonstrates the complexities of disputing a Will is the case of Mrs Ilot vs The Blue Cross (and other animal charities). Mrs Ilot was the estranged daughter of the deceased, and despite previous attempts at reconciliation, the mother disapproved of her daughter’s life choices and they remained estranged at the date of the mother’s passing. In her Will, the mother left her entire estate to a number of animal charities with which she had limited contact in her lifetime. Upset with this, the daughter made a claim under the Inheritance (Provisions for Family and Dependents) Act 1995 and was awarded £50,000 at an initial court hearing. The charities successfully appealed and so Mrs Ilot appealed again. The Court of Appeal increased the award to Mrs Ilot to £163,000. The charities then appealed the Court of Appeal’s decision and the Supreme Court reverted back to the first decision, awarding Mrs Ilot the original £50,000.
Ashtons Legal offers a full range of legal services to business and individuals in Norwich, Cambridge, Ipswich, Bury St Edmunds, Thetford. www.ashtonslegal.co.uk.
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